Articles Discussing Case:

The Sixth Circuit Court recently held in Kindred Nursing Centers East, LLC v. NLRB that the National Labor Relations Board (“Board”) did not abuse its discretion in Specialty Healthcare, a decision allowing the creation of “micro-bargaining units” e.g., small groups of employees, in non-acute healthcare facilities.

In its 2011 decision in Specialty Healthcare, the National Labor Relations Board changed the test it uses to determine bargaining unit appropriateness. We reported on Specialty Healthcare and its expansion in an alert earlier this year, for the American Bar Association, and in a June 2012 FR Alert. In this case, the Board explained that where a non-petitioning party challenges a petitioned-for unit that is readily identifiable as a group and shares a community of interest on the grounds that it is inappropriate because it does not include additional employees, it has the burden of demonstrating an “overwhelming” community of interest between the included and excluded employees. Last week, the Sixth Circuit Court of Appeals (covering Michigan, Ohio, Kentucky, and Tennessee) upheld this controversial decision.

Executive Summary: The Sixth Circuit Court of Appeals has affirmed the decision of the National Labor Relations Board (NLRB) in Specialty Healthcare, which requires employers to prove employees share an "overwhelming community of interest" to successfully challenge the composition of a bargaining unit. The court held that: (1) the Board may depart from its own precedent if it explains its decision and the departure is not arbitrary and capricious; (2) the Board's clarification and use of its "overwhelming community-of-interest" standard was clearly explained and therefore not an abuse of its discretion: (3) the Board did not violate the National Labor Relations Act (the Act) because it based its decision on factors beyond the extent of the union's organization efforts; and (4) the Board did not abuse its discretion by choosing to follow an already existing principle through adjudication instead of rulemaking. See Kindred Nursing Centers East v. NLRB (Aug. 15, 2013).